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It’s becoming clearer and clearer that the 17th Amendment‘s passage in 1913 in conjunction with other changes, tipped the scale of power too heavily in the direction of Federal government. States lost much of their influence on Congress, since prior to that, Legislatures elected representatives to the United States Senate.

The people were both represented directly by electing members to the U.S. House of Representatives and indirectly through their Legislatures’ election of Senators. Since so many Americans are focused on the federal level where so much power resides and focused much less on their State government, it would not be appropriate or effective at this time to suggest an effort to repeal the 17th Amendment.

But one way to restore the balance between State and Federal government that has been proposed provides a very attractive means by which States could reject Federal legislation or regulations. In addition to restoring that balance, it also seems a mechanism by which the people would once again start to focus on State Legislatures.

The idea was originally proposed by Prof. Randy Barnett and a VA State Legislator, as described in a Wall Street Journal article . Prof. Barnett discusses his idea, providing a bit more detail, in a recording of a radio interview he recently did on a VA radio station.

The text of the proposed amendment:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

What follows here is Linda’s analysis of Prof. Barnett’s proposal, alternatives, and recent events associated with the idea:

Some have criticized or questioned the proposal in a couple of respects. First, one commentator argued that the phrase “law or regulation” needs to be more specific. What about executive orders? What about treaties? Barnett responded to the latter question by stating:

“The language of the Repeal Amendment adopts that of the Supremacy Clause of Article VI, which reads (with my brackets inserted): ‘[a] This Constitution, and [b] the *laws of the United States* which shall be made in pursuance thereof; and [c] all treaties made, or which shall be made, under the authority of the United States, shall be the supreme *law of the land*. . . . ‘ So according to the Constitution, ‘laws of the United States’ made in pursuance of the Constitution are distinct from either the Constitution itself or treaties, though all three comprise the ‘law of the land.’”

It does occur to me that the question of treaty ratification may prove “sticky” if not specifically addressed. Treaties are ratified by the Senate (Const. Art. II, Sec. 2). I’m assuming, from Barnett’s answer, that he does not contemplate the Repeal Amendment would apply to such votes because a vote re whether or not to ratify a treaty does not result in the passage of a “law of the United States” made in pursuance of the Constitution. Personally, I would like executive orders to be included in the proposed amendment. That way the Amendment would provide the states the power of a check upon both Congress and the President.

Second, in researching criticisms of the proposal, I encountered an article whose author complained that the Repeal Amendment, as written, does not address the mechanism by which states would register their desire for repeal. (I have not been able to find that article again, although I’ve tried. I’m summarizing the author’s concerns here to the best of my ability.) In addition, the author questioned how much time following the passage of a law could pass before the states’ power to repeal was, in essence, “waived.” Also of concern was the question of how much time could elapse during which the individual states acted to request appeal and the assent of the requisite number of states to accomplish repeal was gained. The author is not pointing out a deficiency in the proposal here, however. Before the 17th Amendment, state legislatures had the power to appoint their state’s U.S. Senators. If my memory serves me, the Constitution did not set out a procedure for the states to follow in accomplishing that task. Each state was free to determine its own procedure. Similarly, each state now has the authority to determine how their Electoral College votes will be counted. I do not think the Constitution determines the procedure any longer, although it once did do so to some extent (i.e., the provisions of the Constitution as to how the Electoral College was to work have been amended since ratification of the Constitution; they used to be much more specific than they are now). The latter two concerns dealing with time have been addressed in the context of ratification of amendments to the Constitution because that document does not include particular provisions imposing time limitations. The Repeal Amendment would be no different.

This idea is receiving a good deal of publicity, particularly since Rep. Eric Cantor chimed in advocating its passage. It has, in fact, been recently introduced in the U.S. House of Representatives by Rep. Rob Bishop (R-UT).   Additionally, Attorney General Ken Cuccinelli (VA), who recently won the favorable verdict in VA federal court concluding that the health care reform law’s individual mandate is unconstitutional, has written a letter to each of the states’ attorneys general asking for their state’s support of the proposal.

At a recent press conference, supporters announced that 10 states have, thus far, joined in supporting the proposal (i.e., elected officials in Virginia, Utah, Florida, Indiana, Missouri, New Jersey, Minnesota, Georgia, Texas and South Carolina have signed on to the idea).